Asbestos, Lung Cancer: application of Keefe
Taylor v Fascia Future  EWHC 3049 QB
This is a somewhat unusual case in that it is the only reported asbestos related claim in which the decision in Keefe v The Isle of Man Steam Packet Company Limited  EWCA Civ 683, (a NIHL claim) has been applied.
In Keefe LJ Longmore stated:
“If it is the defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that noise levels were not, in fact, excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically…[A] defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce evidence must run the risk of adverse factual findings”
The impact of Keefe in disease claims has long been debated and whether it was fair for the burden of proof to be effectively reversed. In disease litigation it is often the case that the exposures took place a long time ago and/or the defendant employer is no longer trading, leading to a paucity of documentary evidence for the defendant.
In Taylor the claimant developed lung cancer caused as a result of negligent exposure to asbestos during the course of his employment with the defendant from 1994 to 2006.
The claimant alleged exposure as a result of removing asbestos soffits, fascias, and guttering from domestic properties which involved cutting asbestos containing materials (“ACM”) with handsaws and angle grinders, handling and transporting the ACM as well as breaking up ACM.
The defendant denied that the claimant would have encountered ACM as often as alleged and any asbestos would generally have been located in guttering and soffits. It was denied that the guttering and soffits would need to be cut and would be removed in one piece. It was denied that the claimant would be required to break up ACM.
Breach of duty was admitted 2 days before the preliminary hearing. The hearing continued and the defendant made a number of concessions including that the frequency of exposure was higher than initially stated, asbestos was stored in a garage and that no steps had been taken to comply with the Control of Asbestos at Work Regulations 1987.
The main issue between the parties at the hearing was the frequency of the exposure notwithstanding the concessions made by the defendant. The claimant argued in light of Keefe that the court should prefer the claimant’s evidence given the lack of documentary evidence from the defendant. The defendant argued that Keefe was not relevant as it concerned the issue of breach of duty which had been conceded in this case.
The judge found that
“I do, however, accept the relevance of Keefe to the present case to this extent. The Court was clearly focused in that case on the specifically factual component of liability, and even more specifically on the particular factual issue of frequency of exposure to a potentially causative hazard. In my view it would be fair to conclude that the Defendant in this case should not benefit from the absence of records by expecting me to do other than take the upper end of…[the] range of frequency – 60% – as the lowest point of the credible range.”
The decision in this case is perhaps not surprising given the string of decisions this year in Bussey, Heynike and Hawkes. The 1987 Regulations imposed more stringent requirements on employers to test for asbestos and devise and implement specific safe systems of work as compared to the Asbestos Regulations 1969. Whether the court would apply the same logic in claims where exposure was governed by the 1969 Regulations remains to be seen and whether a defendant would receive a more beneficial approach for exposures which may have occurred several decades ago.
NIHL – Jurisdiction: County or Admiralty Court
Meeks v BP Shipping and Fyffes (unreported 2018)
This appears to have been a relatively straight forward NIHL claim which has given rise to an interesting procedural point.
The claimant was employed as a ship’s carpenter between 1974 and 1979. It was alleged that the claimant was, inter alia, exposed to excessive noise whilst working on ships owned by the defendants. All the alleged exposure took place whilst the claimant was at sea.
The claimant issued his claim in the county court. The defendant argued by virtue of s.20(2) of the Senior Courts Act 1981 and CPR Part 61.2 that the claim ought to have been commenced in the Admiralty Court and an application was made to strike out the claim on this basis.
s.20(2)(f) of the 1981 Act provides that the Admiralty Court has jurisdiction over
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of -
(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible,
being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
The claimant resisted the application on the basis that
- The claim did not fall within the definition of s.20(2); and/or
- The defendant ought to have made an application under CPR Part 11in respect of jurisdiction within 14 days from the filing of the acknowledgment of service; and/or
- Strike out was too severe a sanction and the case should be transferred to the Admiralty Court
The court held that
- This was a case which this was clearly for personal injury arising from the management of the ship and therefore came within s.20(2);
- There was no need for an application under CPR Part 11 as in this case the county court lacked inherent jurisdiction;
- The court did not have power to transfer the case given the lack of jurisdiction
Silicosis: CPR PD16, medical evidence
Mark v Universal Coatings & Services Ltd and Barrier Ltd  EWHC 3206
This is an interesting procedural decision on the approach the court should take where the claimant fails to serve medical evidence or a schedule of special damages with the particulars of claim.
The defendants applied to strike out the claim and were successful at first instance. On appeal the High Court allowed the claimant's appeal and reinstated the claim. It was held that the requirement to serve a medical report and schedule of loss with the particulars of claim in accordance with CPR PD 16 para. 4.3 did not contain an implied sanction for non-compliance and therefore did not engage the principles for relief from sanctions.
The claimed damages in respect of silicosis and pulmonary fibrosis as a result of alleged negligent exposure to exposure to silica whilst employed with the defendants. The claim was issued shortly before the expiration of the primary limitation period (based on the date the claimant instructed solicitors) and the time for service of the particulars of claim and medical evidence was extended by application. The claim form and particulars of claim were eventually served. The medical report and draft schedule of loss followed a few weeks later.
At first instance the judge held that CPR PD16.4.3 stated that a claimant “must” serve the medical report and schedule of special damages with the particulars of claim. This included an implied sanction for failing to do so. There was no good reason in this case why the medical report and schedule of special damages had not been so served and the claim was struck out.
On appeal, it was held that CPR PD16.4.3 set a benchmark because it was a practice direction that covered all personal injury claims which was honoured more in the breach than in the observance and there was no implied sanction for failing to comply. The word "must" was used liberally in the CPR, but to imply the need to apply for relief from sanctions in all cases where a rule or practice direction used "must" would result in the courts being inundated with applications quite unnecessarily (see paras 49, 52-54 of judgment).
Mesothelioma: Compensation Act 2006 and Third Party (Rights against Insurers Act) 2010
The above Act has now been converted to a statutory instrument: Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018. The Regulations have now been approved by Parliament and came into force on 23 November 2018.
A detailed discussion of the impact of the then Act, now Regulations, is included in our update for July-September 2018 .